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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE SIDE JURISDICTION
WRIT PETITION NO. 2648 OF 2011
PAACK-IN-INDIA, ... Petitioner.
A registered partnership firm, office at (Org.Plaintiff/ Decree Holder)
D/75, MIDC, Ranjangaon, Tal. Shirir,
Dist. Pune - through its authorised partner
Mr. Sanjay Sachalal Chajjed, R/a.52/502,
Ganga Satellite, Wanworie, Pune.
V/s.
VSR FOODS & BEVERAGES PVT. LTD. ... Respondent.
A company registered, office at A-207 (Org.Defendant/Jt.Debtor)
nd
Snehganga, 2 floor, Shankarsheth Rd.,
Pune & Factory at Plot No. E-16,
MIDC, Ranjangaon, Tal. Shirur, Dist.Pune.
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Mr. Ajay A. Basutkar for the Petitioner.
Mr. Jyotishwar Bhosale for the Respondent.
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CORAM : D. G. KARNIK, J.
DATE : 07th JUNE, 2011.
P.C. :
1 Rule, returnable forthwith. Mr. Bhosale waives service for the
respondent. By consent, taken up for final hearing.
2 By this petition, the petitioner challenges the order passed by the
executing court below Exh. 14 in Special Darkhast No. 212 of 2009. The
petitioner is a decree holder. He had filed a summary suit bearing Special
Summary Suit No. 58 of 2008 against the respondent for recovery of
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money. That suit was decreed and the respondent was directed to pay
to the plaintiff a sum of Rs. 2,10,270/- together with future interest at the
rate of 4% per annum until its realization. Since the respondent did not
make the payment, the petitioner filed an execution petition no. 212 of
2009. In the execution petition, the respondent made an application at
Exh. 14, purporting to be an application under section 47 read with
Order 21, Rule 2 of the Civil Procedure Code. By that application the
respondent contended that he had made payments of certain amounts to
the petitioner between 26th July, 2004 and 21st January, 2007. The
money paid by the respondent to the petitioner fully covered the
decreetal amount and the decree was satisfied. No amount was due to
the petitioner. He prayed that he may be given a liberty to produce
evidence before the executing court about the payment made and till
then the warrant for execution be stayed.
3 The application was allowed by the court by passing the following
order.
“Perused application and Say.
Satisfaction of decreetal amount is claimed by JD. If it
been so opportunity needs to be given to prove and establish such
fact. As such JD is directed to make available on record oral and
documentary evidence in support of contentions raised herein to
make clear that whatever amount that was claimed in the main
suit had been already paid to DH. Matter be fixed for such
evidence on 17.12.09.”.
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4 It may be noted that the suit was filed by the petitioner on 22nd
April, 2008 and the decree was passed on 29th April, 2009. The payments
that the respondent alleges to have made to the petitioner are made
between the years 2004 to 2007 i.e. prior to the passing of the decree.
The respondent could have and ought to have taken the defence of the
alleged payments in the written statement and /or in the application for
leave to defend made in the suit. Once the suit is decreed, the
executing court is bound to execute the decree as it is and cannot go
behind the decree. It cannot allow to raise contention that the decree is
satisfied on account of payment alleged to have been made prior to the
date of the institution of the suit or the decree. That would amount to
ignoring the decree and sitting in adjudication of the dispute afresh.
5 The impugned order goes beyond the decree and permits the
respondent to adduce evidence of the payment alleged to have been
made by the respondent prior to the decree. Obviously, this cannot be
done. In the circumstances, the impugned order is set aside and the
executing court is directed to proceed with the execution in accordance
with the law.
[D.G. KARNIK, J.]
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